7.  The applicant was born in 1939 and lives in Moscow.
8.  In 2004 criminal proceedings were brought against him in the United States of America. They concerned his alleged misappropriation of funds provided to Russia by the USA during his term as Russian Minister for Energy.
9.  On 11 February 2005 he obtained a four-month Swiss visa issued by the Swiss Embassy in Moscow, valid until 10 June 2005. On the visa application form he had indicated, without being more specific, that the main purpose of his journey to Switzerland was to visit his daughter, who was living in Bern.
10.  On 21 February 2002 criminal proceedings were opened against the applicant’s daughter, by the competent investigating judge for the Canton of Bern, on a charge of money laundering. The suspicions notably concerned sums of money she had allegedly received from her father.
11.  On 5 April 2005, when consulting the case file concerning the criminal proceedings against the applicant’s daughter, her former lawyer informed the investigating judge that the applicant visited Switzerland from time to time and that he agreed to be questioned in connection with the case in question. The applicant then indicated to his daughter’s lawyer that he was prepared to come to Switzerland to be questioned by the investigating judge. He explained that it would suit him if the questioning took place between 20 April and 6 May 2005.
12.  On 15 April 2005 the investigating judge thus suggested two possible dates to the new lawyer representing the applicant’s daughter, namely 1 and 2 May 2005.
13.  After arriving in Switzerland on 20 April 2005 the applicant expressed, through his daughter’s lawyer, his preference for 2 May 2005 at 2 p.m. He asked the investigating judge to confirm that date.
14.  On the same day the judge duly issued a summons using the appropriate form in accordance with practice in the Canton of Bern. The hearing was scheduled for 2 May 2005 and the summons indicated that any delay in appearance or unjustified absence from the hearing would entail a penalty, with the possibility of using force in the event of non-appearance. The summons, which was addressed to the applicant, was served at his daughter’s private address in Bern. A copy was also sent to her lawyer for information purposes.
15.  On 28 April 2005 the investigating judge contacted a public prosecutor in Pennsylvania, USA, to find out any information that might be useful in the proceedings against the applicant’s daughter. During the conversation, the judge mentioned that he would be questioning the applicant on 2 May 2005 at 2 p.m.
16.  On 29 April 2005 the US Department of Justice sent the Swiss Federal Office of Justice a request for the applicant’s provisional arrest in accordance with the extradition treaty of 14 November 1990 between Switzerland and the USA.
17.  On the same day the Federal Office of Justice (mutual legal assistance division) issued an “urgent” order for the applicant’s arrest that was sent to the investigating judge for the Canton of Bern.
18.  On 2 May 2005 at 2 p.m. the applicant appeared before the investigating judge for the Canton of Bern to give evidence in the proceedings against his daughter. When asked why he was in Switzerland he replied that he was visiting for private reasons but also for business.
19.  After the interview, which lasted about four hours, the investigating judge notified the applicant that he was under arrest. Two police officers of the Canton of Bern, who had been waiting in a neighbouring room for the interview to finish, immediately took him to the regional prison of Bern.
20.  On 3 May 2005 the Federal Office of Justice issued an order for the applicant’s provisional detention pending extradition and it was served on the applicant the next day.
21.  On 17 May 2005 Russia also applied for his extradition.
22.  On the same day, the applicant lodged an appeal with the Appellate Division of the Federal Criminal Court.
23.  During his detention the applicant wrote an article, which was published on 6 June 2005 in the Moscow daily newspaper Izwestija. He explained that his trip was connected to two projects on which he was working at the time, concerning the export of energy by Russia and technological cooperation, in particular with an energy supplier based in Switzerland.
24.  On 9 June 2005 the Federal Criminal Court upheld the applicant’s appeal and set aside the extradition arrest order against him. The court took the view that the applicant had been in Switzerland for questioning in the context of criminal proceedings against his daughter, that the summons for the interview of 2 May 2005 should have been served on him through mutual assistance channels and that the protection afforded by the safe-conduct clause, deriving from the requirement of good faith, was also valid for a person examined as a witness who had not been summoned through mutual assistance channels but who had appeared “spontaneously” in Switzerland to give evidence.
25.  On 17 June 2005 the Federal Office of Justice appealed before the Federal Court against the Federal Criminal Court’s decision.
26.  On 24 and 27 June 2005 the US authorities filed a formal request, dated 2 June 2005, for the applicant’s extradition to the USA.
27.  On 14 July 2005 the First Public Law Division of the Federal Court upheld the appeal of the Federal Office of Justice.
28.  The Federal Court basically took the view that the applicant had been visiting Switzerland for private purposes – to see his daughter – and for business. In its view, the Federal Criminal Court had clearly made an erroneous and incomplete assessment of the facts in finding that the applicant had come to Switzerland in order to give evidence as a witness in criminal proceedings. It was not therefore appropriate to apply Article 12 of the European Convention on Mutual Assistance in Criminal matters of 20 April 1959 or Article 73 of the Federal Law on International Mutual Assistance in Criminal Matters (see paragraphs 31-32 below). The case was referred back to the Federal Criminal Court for examination of the applicant’s other arguments (breach of the Russian Government’s immunity under international law, and the allegedly political nature of the criminal proceedings against him in the USA).
29.  The applicant was held in custody until 30 December 2005 and then extradited to the Russian Federation pursuant to an administrative decision of the Federal Court of 22 December 2005. That court, unlike the administrative authority, the Federal Office of Justice, found that priority had to be given to the Russian extradition request, as the applicant was a Russian national and stood accused of committing criminal acts mainly in that country.
30.  In a decision of 6 December 2007 the Federal Criminal Court dismissed, at last instance, a request by the applicant for compensation in respect of his detention pending extradition. The court found that his detention had not been unlawful.
31.  Article 12 of the European Convention on Mutual Assistance in Criminal matters of 20 April 1959, to which both Switzerland and the Russian Federation are parties, contains a safe-conduct clause. That Article reads as follows:
“1. A witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or convictions anterior to his departure from the territory of the requested Party. 2. A person, whatever his nationality, summoned before the judicial authorities of the requesting Party to answer for acts forming the subject of proceedings against him, shall not be prosecuted or detained or subjected to any other restriction of his personal liberty for acts or convictions anterior to his departure from the territory of the requested Party and not specified in the summons. 3. The immunity provided for in this article shall cease when the witness or expert or prosecuted person, having had for a period of fifteen consecutive days from the date when his presence is no longer required by the judicial authorities an opportunity of leaving, has nevertheless remained in the territory, or having left it, has returned.”
32.  Section 73 of the Federal Law on international mutual assistance in criminal matters of 20 March 1981 contains a provision on safe conduct in Switzerland:
Section 73: Safe conduct in Switzerland
“1.  A person habitually resident abroad and who appears in Switzerland in a criminal case pursuant to a summons may neither be prosecuted nor restricted in his personal freedom on the basis of reasons that pre-date his entry into Switzerland. 3.  The safe conduct provided for in paragraph 1 shall cease when the person leaves Switzerland and at the latest three days after he is permitted to leave by the summoning authorities.”
33.  The object and purpose of the safe-conduct clause were explained as follows by a Federal Court judgment of 26 April 1978 (ATF 104 Ia 448):
“5. ... The safe-conduct clause, of Swiss origin, was quite naturally inserted in the treaties in order to avoid disguised extraditions. In so far as the treaties laid down the conditions in which a country was obliged to consent to the extradition of criminals to another country, it was appropriate to preclude the situation where a witness, who was summoned to appear in another country, was detained there without heed for the substantive conditions or formalities required for extradition.
Subsequently, the various States generally refrained from laying down, in their extradition or mutual assistance treaties, an obligation for witnesses to appear abroad, as was first the case in the Treaty of 1843 between Belgium and the Netherlands (see Von Martitz, op. cit., and vol. II, p. 722, and 725, no. 37). The same guarantees were nevertheless maintained for witnesses residing in one of the States parties who were summoned in the other and who appeared there voluntarily. The issue gave rise to difficult negotiations between Switzerland and Italy during discussion of the extradition treaty that was to replace one that had been concluded with Sardinia in 1843. On the proposal of the Swiss Government, it was finally decided that a witness could never be forced to appear before the foreign court. When the personal appearance of a witness was required, the Government of his country would advise him to comply with the request. If the witness agreed to leave, in no case could he be arrested or intercepted for an act pre-dating his appearance during his obligatory stay in the place where the judge examining him exercised his duties or while he was travelling (Article 14 of the Convention of 22 July 1868, applicable until the entry into force for Switzerland and Italy of the European Convention on mutual assistance in criminal matters, RS 12, p. 160, cf. FF 1868 III, pp. 444-445, 869-870).
8 (b) ... It is evident that the fact of travelling, in response to a summons, to another country, without having been requested to do so by the Government of the country of residence, does not render the safe-conduct requirement devoid of justification. In responding to a summons he received as witness and in travelling for that purpose to another country, the individual in question, if he were not guaranteed safe conduct, would be deprived of the benefit of the safeguards provided for in extradition treaties, and it would seem logical to consider that in complying with the summons he should be immune from arrest and prosecution, as the Federal Court previously decided, in respect of inter-cantonal relations, in its aforementioned judgment (ATF 3, p. 245). This is also the opinion that the Federal Council expressed in its dispatch on the interpretation, on this point, of the European Convention (‘According to the convention, the interested parties enjoy this immunity regardless of the channel through which the summons is served’, FF 1966 I 493.) ...
(c) Some doubt may admittedly exist as to the exact meaning of Article XV, paragraph 2, of the convention between Switzerland and Spain. However, taking account of the terms of this provision and comparing this text with previous texts, it appears that it must indeed be considered that the immunity resulting therefrom applies to any witness who, having been duly summoned, has appeared voluntarily in the other country, without it being necessary to refer to the form of summons provided for in Article XIV or the intervention of the Government of the country of residence as provided for in Article XV, paragraph 1.
(d) This is the solution which was accepted in a very general manner in the Bill on international mutual assistance in criminal matters, submitted to the Federal Assembly by dispatch of 8 March 1976 (FF 1976 II, p. 497).
The Committee of Experts which prepared the draft law expressed the following view on this subject:
‘For a long time, treaties in such matters have regularly provided for safe-conducts to be issued to witnesses and experts who, coming from abroad, appear before the authorities of the requesting State in a criminal case in response to a summons served on them in their State of origin. Experience has shown that, unless a safe-conduct is issued, a summons is rarely complied with in such cases. It would not be understood if such protection were granted only pursuant to a treaty. Moreover, the traditional treaty clause does not appear totally sufficient. In principle it would concern witnesses and experts alone, and only when they appear freely. However, detainees may also be witnesses...’ (Report of the Committee of Experts, p. 61/62).
...”
34.  In an unpublished judgment of 17 May 1995 (1P.289/1995), the Federal Court had occasion to develop its case-law on safe-conduct clauses as follows:
“2 (a) The safe-conduct clause was inserted into international treaties in order to avoid disguised extradition: a witness required to appear in another country cannot be detained there without heed for the substantive conditions or formalities required for extradition (see, for the background to this clause, Federal Court judgment ATF 104 Ia 452ss., point 5). It will in any event be necessary, under Article 12 of the [European Convention on mutual assistance in criminal matters] and section 73 of the [Federal Law on international mutual assistance in criminal matters], for the authorities of the requesting State to have summoned this witness to appear by serving an order for that purpose. That is not the case here, since the investigating judge did not issue the appellant with an order to appear according to the formalities provided for in Article 17, paragraph 1, of the Geneva Code of Criminal Procedure, taken together with section 31 of the said Law. The appellant cannot therefore, in principle, rely on the immunity attached to an official order when it has not been issued, as in the present case. On this specific point, this case differs from the factual situation underlying the Federal Court judgment ATF 104 Ia 448 cited by the appellant.
(b) The appellant relies on Article 170 of the Geneva Code of Criminal Procedure, under which any person summoned before the investigating judge must be served with a letter or order for that purpose (para. 1); exceptionally, a summons may be addressed by any other means that is necessary in order to reach the witness (para. 2). He submits in this connection that Mr Perret’s letter of 8 March 1995 is equivalent in substance to a summons within the meaning of Article 170, paragraph 2, of the Geneva Code of Criminal Procedure.
(c) Article 170 of the Geneva Code of Criminal Procedure enshrines the rule that it is the judge who conducts the proceedings. While the parties have the right to request the examination of witnesses, in accordance with Article 174 of the said Code, the service of an order to appear is exclusively a matter for the judge. As to Article 170, paragraph 2, of the Code, it refers in particular to exceptional cases where, because of the urgency, the judge notifies an order to appear informally, by telephone or cable, for example. However, the wording of this provision does not prevent the judge, if need be, from requesting a lawyer to bring a witness to the hearing; on the other hand, it probably does not empower a lawyer to summon a witness of his own accord, without the judge authorising or being informed of the witness’ appearance.
(d) On 7 March 1995 Mr Perret asked the investigating judge to examine I. as a witness, explaining that he would take care of the ‘summons’ himself. However, neither Mr Perret, nor I. insisted on the service of an order to appear in the form provided for by Article 174, paragraph 1, of the Geneva Code of Criminal Procedure, taken together with section 31 of the said Law. Nevertheless, the lack of reaction on the part of the investigating judge in this regard could be interpreted as an implicit acquiescence to Mr Perret’s proposal to call I. as a witness at the hearing of 13 March 1995, on the basis of an informal summons within the meaning of Article 170, paragraph 2, of the Geneva Code of Criminal Procedure. In addition, Mr Perret was entitled to assume that the investigating judge would have served an order to appear on the appellant if a formal request had been made to him, as was the case for the witness M. A diligent lawyer could well have been expected to make sure what the investigating judge had decided. In any event, the judge himself could not have relied on the absence of a formal order to consider that the appellant would have appeared ‘spontaneously’ at the hearing of 13 March 1995; he could not have been unaware of Mr Perret’s request for the appellant’s examination. The fact that Mr Perret did not address his letter of 8 March 1995 to the investigating judge, strange as this may seem, makes no difference. From the point when the investigating judge received a request for the appellant to be called to give evidence as a witness it was his duty to take a formal decision on this matter. By failing to do so, the investigating judge created some ambiguity as to his intentions, and the appellant, summoned through the intermediary of Mr Perret, should not have to assume the consequences thereof. The difference in treatment between the witness M. and the appellant in this regard would indeed appear excessive and therefore arbitrary.
Thus, in failing to give a clear decision as to the means of summoning the appellant to the hearing of 13 March 1995, the investigating judge cast doubt in the mind of the appellant, who was entitled to consider, in good faith, that he had been duly summoned to the hearing of 13 March 1995, as a witness protected by the immunity referred to in Article 12 of the [European Convention on mutual assistance in criminal matters] and section 73 of the [Federal Law on international mutual assistance in criminal matters].
The appeal must therefore be upheld, the order appealed against set aside and the appellant immediately released.
...”